A discussion about issues, appellate decisions, and other news of interest to Kansas defenders. This site does NOT necessarily reflect the opinion or position of the Appellate Defender Office or of the Kansas Board of Indigent Defense Services. Nor does this in any way constitute legal advice or is it even warranted to be remotely accurate! It is intended to be a resource for Kansas defenders and others interested in the criminal justice system in Kansas.

Friday, May 25, 2012

Rick Kittel and KU Defender Project intern Sean Foley won in State v. Driskell, No. 105,126 (Kan. App. May 18, 2012)(unpublished), obtaining reversal of a Reno County possession conviction. The main issue on appeal is whether having an open box of unopened beer cans constitutes the offense of transporting an open container, which in turn would have supported a detention and search that led to the drugs and the eventual conviction. The COA held that it did not:

Furthermore, K.S.A. 2008 Supp. 8-1599(b)(1) provides that alcohol may be transported in “the original unopened package or container, the seal of which has not been broken and from which the original cap, cork or other means of closure has not been removed.” But a cardboard box carrying cans of beer does not have a seal to be broken or a cap to remove. Rather, the liquid is sealed inside the can. Accordingly, even if we did not apply the rule of lenity, it is apparent that a box of unopened cans of beer does not fall within the statutory description of a package or container of alcohol. Thus, we conclude that it is not a violation of the statute to transport a box containing unopened cans or bottles of beer.

Because the officers could not arrest Mr. Driskell for transporting an open container, the search was illegal and the COA reversed the conviction stemming from the search incident to arrest.

[Update: the state did not file a PR and the mandate issued on June 21, 2012.]

Friday, May 11, 2012

Karen R. Palmer won in In re L.L.B., No. 106,469 (Kan. App. May 4, 2012), obtaining a new hearing to determine whether L.L.B. had to register as an offender in a Sedgwick County assault and disorderly conduct adjudication. The district court had ordered L.L.B. to register finding that the offenses were sexually motivated. The COA held that the district court had failed to make appropriate findings to support a registration requirement:

At sentencing, the trial judge stated: “I am going to find that this was a sexually motivated crime, and I'm going to require private sex offender registration.” The trial court did not state on what facts it was basing its determination. Moreover, the trial court failed to make any findings of fact on the record or in the journal entry to support its conclusion that the crime was sexually motivated. Other than the affidavit, the State did not present any evidence that L.L.B. had committed the crime for the purpose of sexual gratification. The State must present substantial competent evidence to support the determination and the defendant must have the opportunity to confront any witnesses against him. Therefore, the trial court erred as a matter of law by failing to make the factual findings required by the KORA. As a result, we reverse the trial court's determination and remand for a hearing to determine whether, beyond a reasonable doubt, L.L.B. exposed himself to the victim for the purpose of his sexual gratification.

The COA also noted that on remand, the district court should consider legislative amendments that may have provided for exceptions for certain juvenile offenders.

[Update: the state filed a PR on June 4, 2012.]

[Further update: the KSC denied the state's PR and the mandate issued on October 12, 2012.]

Washburn student intern Christopher Mann and I won in State v. Frye, No. 101,292 (Kan. May 4, 2012), obtaining a new trial in a Riley County aggravated battery prosecution. Here are the procedural facts set out by the KSC:

Frye was bound over for trial on a count of level 4 aggravated battery. At the arraignment 6 days later, Frye requested a "jury trial setting," and the court set a pretrial conference for May 19, 2008.

The record is silent as to what happened in the case thereafter, until the district court conducted a bench trial on May 30, 2008. The only explanation as to why the case was tried to the bench is the prosecutor's statement, at the beginning of the bench trial, that defense counsel "and her client have signed a waiver of jury trial that was originally scheduled at this time," and the prosecutor's later statement that he "thought this was going to be a jury trial until late yesterday afternoon." The transcript does not reflect that the trial court advised Frye of his right to a jury trial or made any further inquiry into the purported waiver. Likewise, the record contains no defense objection to the bench trial.

The COA had reversed (blogged about here) based on an insufficient jury trial waiver. The KSC, following long-standing precedent, agreed:

The State contends that Frye did effect a waiver through the handwritten document filed with the court. That document is in the record on appeal and, quite frankly, it raises more questions than it answers. First, it is not dated. We cannot rule out the possibility that Frye executed the waiver when he was charged with a misdemeanor and not constitutionally entitled to a jury trial. In that event, the waiver would have been ineffectual, or at least unnecessary, when executed.

. . .

Notwithstanding the efficacy of the handwritten waiver, however, the State fails to clear the Irving hurdle that requires that the written waiver be after the defendant is "advised by the court of his right to a jury trial." (Emphasis added.) 216 Kan. at 590. There is absolutely nothing in the record indicating that the district court made any attempt to advise Frye of the nature and extent of his constitutional right to a trial by jury.